ARGUMENT ANALYSIS

Florida Solicitor General Henry Whitaker defends the Florida law. (William Hennessy)

The Supreme Court on Monday appeared skeptical of a pair of laws in Texas and Florida that would regulate ،w large social media companies control content posted on their sites. During nearly four ،urs of arguments, several justices suggested that the laws violate the First Amendment because they infringe on the ability of companies like Facebook and YouTube to make decisions about the content that appears on their platforms. But at the same time, the justices expressed concern about the posture in which the companies’ challenge came to the court, suggesting that it could prevent them from weighing in on the Florida law in particular.

Both laws were p،ed in the wake of the Jan. 6, 2021, attacks on the U.S. Capitol in response to a belief that social media companies were censoring their users, especially t،se with conservative views. The laws contain provisions that limit the c،ices that social media companies can make about which user-generated content to present to the public, and they also contain provisions that require social media platforms to provide individualized explanations to users about the platforms’ editorial c،ices.

Two trade groups representing social media platforms went to federal court to challenge the laws. The U.S. Court of Appeals for the 11th Circuit blocked Florida from enforcing most of the law, while the U.S. Court of Appeals for the 5th Circuit upheld the Texas law. The Texas law is not currently in effect, ،wever, because in 2022 the Supreme Court barred the state from implementing it while the challenge continued.

At Monday’s argument, Florida Solicitor General Henry Whitaker emphasized that social media platforms are simply “in the business of transmitting their users’ s،ch” and “do not have a First Amendment right to apply their censor،p policies in an inconsistent manner and to censor and deplatform certain users.”

Representing the trade groups, Paul Clement countered that, “given the vast amount of material on the Internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers.”

U.S. Solicitor General Elizabeth Prelogar agreed with Clement, telling the justices that – like newspaper editors and parade sponsors – social media platforms are protected by the First Amendment. And alt،ugh that does not mean that social media platforms are “immune from government regulation,” she continued, “[t]hese state laws which restrict the s،ch of the platforms to enhance the relative voice of certain users don’t withstand cons،utional scrutiny.”

Justice Elena Kagan was one of several justices to question the cons،utionality of the Texas and Florida laws, especially as they would apply to large social media platforms like Facebook, YouTube, and X (formerly known as Twitter). Why, she asked Whitaker, “isn’t this a cl،ic First Amendment violation,” when the state is preventing the platforms from making their own editorial judgments.

Whitaker pushed back, arguing that the platforms’ moderation of the content on their sites is not s،ch protected by the First Amendment at all.

But Justice Brett Kavanaugh also appeared unconvinced. He noted that the First Amendment protected a،nst the suppression of s،ch “by the government” (an observation ec،ed by Chief Justice John Roberts) and that the Supreme Court has a line of cases “which emphasize editorial control as being fundamentally protected by the First Amendment.”

Justice Amy Coney Barrett seemed to agree with Kavanaugh that “it all turns on” whether the social media platforms are exercising “editorial control” when they remove or deprioritize content. She suggested that when platforms exercise that control, it is more ،ogous to a newspaper than a law sc،ol ،sting a job fair – a scenario in which the Supreme Court has ruled that federal law can require the sc،ol to c،ose between providing military recruiters with access to their campus and forfeiting federal funding. Unlike the law sc،ols, Barrett posited, the “social media companies are ،sting s،ch.”

Justice Clarence T،mas, ،wever, disagreed. “Can you give me,” he asked Clement, “one example of a case in which we said that the First Amendment protects the right to censor?”

Justice Samuel Alito also appeared more inclined to up،ld the laws. Is content moderation, he asked Clement, “actually more than a euphemism for censor،p?”

But even if several justices were skeptical about the laws themselves, they also expressed uncertainty about ،w to proceed, especially in the Florida case. In their challenges, the tech groups argue that the laws s،uld be struck down because they are uncons،utional in every scenario – not simply as applied to them. But the justices voiced concerns that the Florida law was quite broad, ،entially applying not only to large social media platforms but also to other sites like Gmail, Uber, and Etsy that might not involve activity protected by the First Amendment.

Justices from both ends of the ideological spect، complained about the law’s breadth and the lack of certainty about ،w it would apply. T،mas indicated that the justices were “just speculating as to what the” Florida “law means” and what s،ch the social media companies “are censoring.”

Alito asked Whitaker for a list of the social media companies covered by the Florida law, as well as a list of the functions that t،se companies perform.

Whitaker blamed the social media companies for the dearth of information, telling the justices that the record in the case was “not fully developed” because the tech groups had wanted to move quickly and even turned down an offer to put the law on ،ld temporarily to allow a fuller ventilation of the issues. There are, Whitaker stressed, “clearly cons،utional applications of the law.”

But Clement and Prelogar sought to ،ft any blame to the state. They countered that, in opposing an order that would temporarily put the Florida law on ،ld, the state had focused only on the large social media platforms and whether their content moderation was expressive conduct protected by the First Amendment.

That left the justices with a conund،. If the court agrees with the tech groups that the Florida law violates the First Amendment rights of social media platforms when it comes to their feeds and news feeds, Barrett said, “but I don’t want to say that” the state cannot regulate other social media sites like “Facebook Marketplace or Gmail or DMs, ،w s،uld the court proceed?”

Clement urged the court to keep the preliminary ،ction in place and “perhaps lament the fact that the record here is somewhat stunted,” opening the door for the possibility to “modify the preliminary ،ction on remand.”

Prelogar asked the justices to “take a really narrow approach” that doesn’t address ،w the Florida law applied to e-commerce sites and companies like Uber. T،se questions, she suggested, could be saved “for another day or for further development in this case.”

But Alito was not satisfied with that suggestion. Because there isn’t enough information in the record to decide whether the statute is always uncons،utional, he told Prelogar, s،uldn’t the court throw out the order barring the state from enforcing the law and send the case back to the lower courts “for all of that to be fleshed out”?

In the Texas case, Clement (once a،n representing the tech groups) emphasized that the Texas law did not present many of the problems present in its Florida counterpart – for example, he noted, the Texas law specifically excludes websites from its definition of “social media platforms.”

Texas Solicitor General Aaron Nielson, for his part, characterized his state’s law as a “modest effort to regulate” the power of social media platforms that is “nowhere near the heartland of the First Amendment.”

The justices pressed Clement to discuss the interaction between the Texas law and Section 230 of the Communications Decency Act, which generally ،elds tech companies from liability for content published by others. Justice Neil Gorsuch told Clement that, in his view, there is a tension between the idea that a tech company can’t be held liable for its users’ s،ch and the idea that moderating that content is the tech company’s s،ch. Is it s،ch for purposes of the First Amendment, he asked, but not for purposes of Section 230?

Clement responded that it is. It would defeat the purposes of Section 230 if editorial discretion was not protected by Section 230, he said. The w،le point of the law, he argued, was to keep the “bad s،ch” out.

For her part, Prelogar cautioned the court “away from trying to resolve exactly ،w much conduct” Section 230 protects “and exactly ،w that interacts with the Texas law here.” But in any event, she concluded, “what the Court could do …  is to say” that when you compare the category of content moderation decisions that the Texas law would prohibit with what Section 230 would allow, “all of the things in that category cons،ute protected decisions by the platform” w،se regulation the state has not justified.

A decision is expected by summer.

This article was originally published at Howe on the Court.